Citation NR: 9626543
Decision Date: 09/20/96 Archive Date: 09/26/96
DOCKET NO. 94-08 834 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Hartford, Connecticut
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Ehrman, Associate Counsel
INTRODUCTION
The veteran had active duty from March 1968 to December 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1993 rating decision of the RO,
which denied the veteran’s claim for an evaluation in excess
of 10 percent for service-connected PTSD.
In February 1996, the Board remanded the appeal for the
completion of requested development, which specifically
included obtaining additional treatment records,
consideration of additional evidence initially received at
the Board (and not previously considered at the RO), and a VA
psychiatric examination was to be conducted to “differentiate
symptoms attributable to PTSD from those due to...” non-
service-connected alcohol abuse and a personality disorder.
The Board’s Remand also requested that the RO develop and
adjudicate the issue of entitlement to service connection for
impotence, secondary to service-connected PTSD. This matter
is again referred to the RO, for action deemed appropriate.
REMAND
As briefly outlined in the Board’s February 1996 Remand
action, a VA psychiatric examination is necessary to
differentiate symptoms attributable to PTSD from those due to
other conditions, i.e. alcohol abuse and a personality
disorder, both diagnosed for many years prior to the instant
claim on appeal. The March 1996 VA psychiatric examination
was inadequate for this purpose, as neither alcohol abuse nor
a personality disorder were noted, despite the examiner’s
reference to having
reviewed the claims file at length. Moreover, recent
treatment records show hospitalization for a syncopal episode
of unknown etiology on November 6, 1995, and the veteran
stated at his March 1996 VA examination that he had been
hospitalized 1 week earlier, perhaps in October 1995, for a
suicide attempt. The etiology of alcohol abuse and a
personality disorder, as well as resulting symptoms, remains
undetermined, and while mental health treatment records were
requested and obtained, VA Hospital records regarding any
suicide attempt in October or November 1995, a matter that,
if true, would be highly probative to the claim on appeal,
have neither been requested nor obtained for consideration at
the RO.
In Waddell v. Brown, 5 Vet.App. 454 (1993), the United States
Court of Veterans Appeals (the Court) held that there may be
a breach in the duty to assist when there are variously
diagnosed psychiatric disorders, but none of the VA
examinations fully described the degree of disability
attributable to each psychiatric disorder. In the immediate
case on appeal, the Board may be presented with symptoms of
service-connected PTSD and nonservice-connected psychiatric
disorders, including a personality disorder, as well as
alcohol abuse, if not found to be related to PTSD, a
determination which has yet to be made by any qualified VA
examiner. As the degree of impairment attributable to each
psychiatric disability remains undetermined, the Board has no
equitable alternative but to once again Remand the case for
such necessary development so as to ensure an equitable
evaluation of the claim on appeal, as well as compliance with
Court decisional precedent. VA hospital treatment records
for October and November 1995 should be specifically
requested, and the veteran should be contacted in order to
facilitate this matter.
To be clear, the Board requests that the examiner determine
if alcohol abuse is secondary to PTSD, and if not, symptoms
of alcohol abuse, as well as a personality disorder, must be
distinguished from symptomatology due exclusively from
service-connected psychiatric disability (PTSD). A Global
Assessment of Functioning (GAF) Scale score should again be
obtained, with an explanation of the
import thereof as it pertains to the veteran’s level of
functioning due exclusively to service-connected psychiatric
(PTSD) symptomatology.
While the Board regrets the inevitable delay in the
adjudication of the veteran’s claim due to this second Remand
action, it is noted that the Court has held that where a
medical opinion is specifically requested of a VA physician,
the absence of such an opinion from the record indicates a
failure in the duty to assist the appellant in the
development of his claim. Smith v. Brown, 5 Vet.App. 335
(1993). Given the multiplicity of psychiatric
symptomatology, as well as the possibility that critical VA
hospital treatment records have neither been obtained nor
considered, it is the judgment of the Board that the March
1996 VA psychiatric examination was incomplete, the appellate
adjudication of the matter at this time would be inequitable,
and a Board decision would not withstand Court scrutiny. See
Cousino v. Derwinski, 1 Vet.App. 536 (1991); Smith, Supra.
In view of the foregoing, and in accordance with the duty to
assist claimants in the development of their claims mandated
by 38 U.S.C.A. § 5107, this case is REMANDED for the
following:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
information about all medical care
providers who have treated him for
psychiatric disease since August 1993,
including clarification of the date and
location of any hospital treatment
regarding the reported suicide attempt in
October or November 1995. After securing
the necessary releases, the RO should
obtain these records, including any and
all additional psychiatric or mental
health treatment records, as well as
inpatient hospitalization records from
the VA medical center in West Haven,
Connecticut, for October and November
1995, to the present.
2. Thereafter, the veteran should be
scheduled for a VA psychiatric
examination. All indicated tests and
studies should be performed, and the
claims folder must be made available to,
and reviewed by, the examiner for use in
the study of the case. Definitive
psychiatric diagnoses should be entered,
with a clear statement as to the
relationship, if any, between service-
connected PTSD and alcohol abuse, and a
clear statement differentiating symptoms
resulting from service-connected
psychiatric disability, from those which
are non-service-connected, including
alcohol abuse, a personality disorder,
and syncopal episodes, as well as any
other psychiatric disability found to
exist. The examiner should describe of
the degree of social and industrial
impairment resulting exclusively from
service-connected psychiatric disability
(PTSD), and a GAF Scale score is to be
obtained, with an explanation of the
import of that score as it pertains to
social and industrial adaptability due to
PTSD. The examiner is to set forth all
findings and conclusions, along with
rationale and support for the diagnosis
entered, in a clear, comprehensive and
legible manner, with reference to
supporting evidence.
3. Thereafter, the RO should
readjudicate the claim for an increased
rating for PTSD. If the decision on the
issue on appeal remains adverse to the
veteran, he and his representative should
be provided a supplemental statement of
the case and be afforded an opportunity
to respond thereto. Evidence recently
submitted and not previously considered
should be reviewed.
Thereafter, if indicated, the case should be returned to the
Board for appellate consideration.
No action is required on the veteran's part until further
notice.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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